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SENIOR NOTE AGREEMENT AMENDMENT
PLUM CREEK TIMBER COMPANY, L.P.
999 THIRD AVENUE
Seattle, Washington 98104
Dated as of October 15, 1995
To each of the Purchasers
listed on the attached
Purchaser Schedule
Dear Purchaser:
WHEREAS, you and the other Purchasers and Plum Creek Timber Company,
L.P., a Delaware limited partnership (the "Company"), have entered into Senior
Note Agreements dated as of August 1, 1994 (the "Senior Note Agreements")
pursuant to which the Company issued its 8.73% Notes due August 1, 2009 (the
"Senior Notes");
WHEREAS, the Company and the Purchasers wish to enter into this
agreement (this "Agreement") in order to amend certain provisions of the Senior
Note Agreements;
NOW, THEREFORE, the Company hereby agrees with you that upon execution
and delivery of this Agreement by holders of at least 55% of the aggregate
principal amount of the Senior Notes outstanding, all the Senior Note Agreements
shall thereupon be amended as set forth in this Agreement, and that thereafter,
all references to, and actions taken in connection with, the Senior Note
Agreements shall incorporate this Agreement in its entirety. All capitalized
terms used in this Agreement and not otherwise defined have the meanings
ascribed to them in the Senior Note Agreements.
SECTION 1. CERTAIN AMENDMENTS
1.1 PARAGRAPH 10B--DEFINITIONS
The following definition contained in Paragraph 10B of the Senior
Note Agreements shall be amended to read as follows:
"Permitted Business" shall mean any business engaged in by the
Company or the Facilities Subsidiary on the date of closing, pulp and paper
manufacturing, and any business substantially similar or related to any such
business.
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1.2 PARAGRAPH 6B(5)--MERGER AND SALE OF ASSETS
(a)Clause (iii) of paragraph 6B(5) of the Senior Note Agreement
shall be amended by adding, after the words "Permitted Business" appearing at
the end of such clause, the following:
"provided that, after giving effect on a pro forma basis to such
merger or consolidation, the gross revenue contribution of pulp
and paper manufacturing activities of the Company and its
Subsidiaries on a combined basis for the 12 months preceding such
merger or consolidation does not exceed 33% of the total revenues
of the Company and its Subsidiaries on a combined basis."
(b)Clause (iv) of paragraph 6B(5) of the Senior Note Agreement
shall be amended by adding, after the words "Permitted Business" appearing at
the end of such clause, the following:
"provided that, after giving effect on a pro forma basis to such
merger or consolidation, the gross revenue contribution of pulp
and paper manufacturing activities of the merged or consolidated
entity and its Subsidiaries on a combined basis for the 12 months
preceding such merger or consolidation does not exceed 33% of
total revenues of such merged or consolidated entity and its
Subsidiaries on a combined basis."
SECTION 3.REPRESENTATIONS AND WARRANTIES
The Company represents and warrants as follows:
3.1 NO DEFAULT
No Default or Event of Default has occurred and is continuing.
3.2 ORGANIZATION
The Company is a limited partnership duly organized, validly existing
and in good standing under the Delaware Revised Uniform Limited Partnership Act
and has all requisite partnership power and authority to own and operate its
properties, to conduct its business as now conducted and as proposed to be
conducted and to enter into this Agreement.
3.3 QUALIFICATION
The Company is duly qualified or registered for transaction of
business and in good standing as a foreign limited partnership in each
jurisdiction in which the failure so to
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qualify or be registered would have a material adverse effect
on the business, property or assets, condition or operations of the Company, or
on the ability of the Company to perform its obligations under this Agreement,
or, after giving effect to the transactions contemplated hereby, the Senior
Note Agreements or the Senior Notes.
3.4 CHANGES, ETC.
Except as contemplated by this Agreement, since June 30, 1995, the date
of the most recent combined financial statements of the Company, (a) the Company
has not incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions not in the ordinary course of
business, and (b) there has not been any material adverse change in the
business, properties or assets, condition (financial or otherwise) or operations
of the Company.
3.5 ACTIONS PENDING
There is no action, suit, investigation or proceeding pending or, to
the knowledge of the Company, threatened against the Company, or any properties
or rights of the Company, by or before any court, arbitrator or administrative
or governmental body which questions the validity of this Agreement, or any
action taken or to be taken pursuant to this Agreement, which would be
reasonably likely to result in any material adverse change in the business,
properties or assets, condition or operations of the Company, or in the
inability of the Company to perform its obligations under this Agreement, the
Senior Note Agreements or the Senior Notes, following the effectuation of the
transactions described herein.
3.6 COMPLIANCE WITH OTHER INSTRUMENTS, ETC.
The Company is not in violation of any provision of the Partnership
Agreement or of any term of any agreement or instrument to which it is a party
or by which it or any of its properties is bound or any term of any applicable
law, ordinance, rule or regulation of any governmental authority or any term of
any applicable order, judgment or decree of any court, arbitrator or
governmental authority, the consequences of which violation would be reasonably
likely to have a material adverse effect on its business, properties or assets,
condition (financial or otherwise) or operations or on the ability of the
Company to perform its obligations under this Agreement, or, after giving effect
to the transactions contemplated hereby, the performance of the Senior Note
Agreements or the Senior Notes, and the execution, delivery and performance by
the Company of this Agreement, or, after giving effect to the transactions
contemplated hereby, the Senior Note Agreements or the Senior Notes will not
result in any violation of or be in conflict with or constitute a default under
any such term or result in the creation of (or impose any obligation on the
Company to create) any Lien upon any of the properties or assets of the Company,
pursuant to any such term except for Liens permitted by paragraph 6B(1) of the
Senior Note Agreements; and there is no such term which materially adversely
affects or in the future would be
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likely to materially adversely affect the business, properties or assets,
condition or operations of the Company or the ability of the Company to perform
its obligations under this Agreement, or, after giving effect to the
transactions contemplated hereby, the Senior Note Agreements or the Senior
Notes.
3.7 GOVERNMENTAL CONSENT
No consent, approval or authorization of, or declaration or filing
with, any governmental authority is required for the valid execution, delivery
and performance by the Company of this Agreement, or, after giving effect to the
transactions contemplated hereby, the Senior Note Agreements or the Senior
Notes.
3.8 AUTHORIZATION; ENFORCEABILITY
This Agreement has been duly authorized by all requisite action and
duly executed and delivered by authorized officers of the Company and the
General Partner, and the Senior Note Agreements, as amended by this Agreement,
are valid obligations of the Company, legally binding upon and enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization or
other similar law affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in proceeding in equity or at law).
3.9 DISCLOSURE
Neither this Agreement nor any other document, certificate or statement
furnished in writing to you by or on behalf of the Company in connection
herewith contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein and
therein not misleading. There is no fact peculiar to the Company which
materially adversely affects or in the future may (so far as the Company can now
reasonably foresee) materially adversely affect the business, property or
assets, condition or results of operations of the Company and which has not been
set forth in this Agreement, or in the other documents, certificates and
statements furnished in writing to you by or on behalf of the Company, prior to
the date hereof in connection with the transactions contemplated hereby.
SECTION 4. MISCELLANEOUS.
4.1 CONTINUITY AND INTEGRATION OF AGREEMENTS.
The Senior Note Agreements, as amended by this Agreement, shall remain
in full force and effect and are hereby ratified and confirmed, and the Senior
Note Agreements and this Agreement shall be deemed to be and are construed as a
single agreement.
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4.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement, and the transfer of any Senior Note by
a holder thereof. Such representations and warranties may be relied upon by any
transferee of a Senior Note from a holder thereof.
4.3 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement contained by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not.
4.4 DESCRIPTIVE HEADINGS.
The descriptive headings of the several paragraphs of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
4.5 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
4.6 GOVERNING LAW
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
General Partner
By: /s/ DIANE M. IRVINE
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Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
The foregoing is accepted and agreed to:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: /s/ A. B. KYLE
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Name: Angela Brock-Kyle
Title: Associate Director - Private Placements
Company: Teachers Insurance and Annuity Association of America
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
General Partner
By: /s/ DIANE M. IRVINE
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Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
The foregoing is accepted and agreed to:
By: /s/ SHABNAM MIGLANI By: /s/ JoELLEN J. WATTS
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Name: Shabnam B. Miglani Name: JoEllen J. Watts
Title: Counsel Title: Counsel
Company: Principal Mutual Life Insurance Company
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
General Partner
By: /s/ DIANE M. IRVINE
-------------------------------------
Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
The foregoing is accepted and agreed to:
By: /s/ JOHN M. CASPARIAN
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Title: INVESTMENT OFFICER
Company: TransAmerica Life and Annuity Insurance Company
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
General Partner
By: /s/ DIANE M. IRVINE
-------------------------------------
Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
The foregoing is accepted and agreed to:
By: /s/ JOHN M. CASPARIAN
-----------------------
Name: John M. Casparian
Title: INVESTMENT OFFICER
Company: TransAmerica Occidental Life Insurance Company
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
General Partner
By: /s/ DIANE M. IRVINE
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Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
The foregoing is accepted and agreed to:
By: /s/ ROGER D. FORS
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Name: Roger D. Fors
Title: Vice President - Fixed Income Investments
Company: AMERICAN MUTUAL LIFE INSURANCE COMPANY
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
General Partner
By: /s/ DIANE M. IRVINE
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Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
The foregoing is accepted and agreed to:
By: /s/ ROBERT M. JERGOVIC, CFA
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Name: Robert M. Jergovic, CFA
Title: Vice President-Private Placements
Company: Guarantee Mutual Life Company
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
General Partner
By: /s/ DIANE M. IRVINE
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Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
The foregoing is accepted and agreed to:
By: /s/ RICHARD B. KELLY
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Name: Richard B. Kelly
Title: Senior Investment Officer
Company: Ohio Casualty Insurance Company